United States v. Lateefah Body

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1718
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UNITED STATES OF AMERICA
v.
LATEEFAH MCKENZIE BODY,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 3-12-cr-00745-001)
District Judge: Honorable Mary L. Cooper
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Submitted Under Third Circuit LAR 34.1(a)
November 19, 2014
Before: SMITH, HARDIMAN and BARRY, Circuit Judges.
(Filed: November 21, 2014)
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OPINION*
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HARDIMAN, Circuit Judge.
Lateefah Body appeals her judgment of conviction and sentence following a jury
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
*
not constitute binding precedent.
trial. We will affirm.
I
Body worked as a customer service administrator for in Ventiv Health, a company
that Abbott Laboratories used to supply free HIV and cancer medications to indigent
patients through Abbott’s Patient Assistance Foundation (PAF). One of Body’s duties
was processing patient applications for the PAF. In doing so, Body entered patient names
as well as the names and addresses of the treating physicians and the medicines and
dosages requested.
Simply put, Body hatched a multimillion-dollar scheme to bilk needy patients out
of lifesaving drugs. She created fictitious patients, and then, using real doctors’ names as
addressees, shipped the drugs to addresses associated with her co-conspirator Keisha
Jackson. It was easy to track which orders Body processed because she and her fellow
customer service administrators each had a unique username and password. Body herself
placed 605 fraudulent orders for medicine. And after she was fired for unrelated conduct,
Body recruited another employee to continue the scam, resulting in an additional 950
fraudulent orders. The wholesale acquisition cost of the nearly 1,600 fraudulent orders
was more than $7.7 million.
II
A
The District Court had jurisdiction over this criminal case pursuant to 18 U.S.C.
§ 3231. We have jurisdiction over the appeal from a final judgment of conviction
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pursuant to 28 U.S.C. § 1291 and over the challenge to the sentence pursuant to 18
U.S.C. § 3742(a).
B
Body first argues that the District Court admitted unfairly prejudicial evidence in
violation of Federal Rule of Evidence 403. We review the District Court’s decision to
admit evidence for abuse of discretion and reverse only if the decision was arbitrary or
irrational. United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir.
2000) (en banc).
The gist of Body’s argument is that a $2,300 check she received from her co-
conspirator Jackson should have been excluded unless the Government called Jackson to
testify at trial or introduced her prior out-of-court statements. According to Body, the
check was misleading to the extent it suggested that it was drawn from drug proceeds and
that Jackson was paying Body for her part in the scheme. Body contends that Jackson
rebutted both of those inferences in a government interview. There she said that the
source of the money for the check was a settlement from an unrelated civil suit and that
Body needed it to pay for a surgery—a tummy tuck, according to the check’s memo line.
Without introducing those statements by Jackson, Body argues, the Government misled
the jury into assuming the worst about the check. Although Body could have called
Jackson as a defense witness, she claims it would have created a catch-22 because
Jackson was cooperating with the Government and had already pleaded guilty.
The principal problem with Body’s argument is that Jackson’s purportedly
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exculpatory statements are surrounded by various inculpatory ones. For example, in the
lone paragraph that Body cites, Jackson inculpates her four separate times. After stating
that she offered Body the check to pay for her surgery, Jackson said she was “frustrated
because [she] felt she was returning most of the money [Body] had given her for
receiving the medication at her address.” App. 434. Jackson then asserted that, after
writing the check, Body promised to stop sending drugs to Jackson’s residence but failed
to follow through on that promise.
It strains credulity to argue, as Body does, that the only possible inference from
Jackson’s statements is that the check was unrelated to the scheme. At best, Jackson
equivocated. And for that reason Body understates the probative value of the evidence
while overstating its prejudicial effect. As the Government argued below, the check was
probative evidence of a substantial financial transaction between co-conspirators while
the scheme was transpiring. Though Body could argue that Jackson simply wrote the
check to help out a friend, the District Court did not abuse its discretion by also allowing
the Government to argue for its favored inference. See United States v. Silveus, 542 F.3d
993, 1004 (3d Cir. 2008) (“A jury may use circumstantial evidence to support reasonable
inferences of fact.”).
C
Body next argues that the District Court erred when it denied her a reduction in
offense level for acceptance of responsibility. We review this decision for clear error.
United States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002).
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The relevant commentary to the United States Sentencing Guidelines dooms
Body’s second argument. Application Note 2 states:
This adjustment [for accepting responsibility] is not intended to apply to a
defendant who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse. . . . [A] determination that a defendant
has accepted responsibility will be based primarily upon pre-trial
statements and conduct.
USSG § 3E1.1, cmt. n.2. Here, Body went to trial, denied essential factual elements of
guilt, was convicted, and even then only tepidly acknowledged guilt, claiming that she
was an unwitting pawn in the scheme. In fact, as the District Court found, the evidence
indicates that Body engineered the scheme. Regardless, her pre-trial statements evinced
no admission of guilt whatsoever, so we cannot say that the District Court clearly erred in
denying Body a sentence reduction for acceptance of responsibility.
D
Finally, Body argues that her sentence is substantively unreasonable because she
accepted responsibility, endured a very difficult childhood, recently suffered personal
hardships, and the loss attributed to her overstated the gravity of her offense. We review
the substantive reasonableness of a sentence for abuse of discretion and afford deference
to the District Court’s sentencing determination. United States v. Tomko, 562 F.3d 558,
567, 570 (3d Cir. 2009) (en banc).
Body’s Guidelines range was 70 to 87 months’ imprisonment. She requested a
downward variance for the reasons just noted. After listening to her arguments, the
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District Court concluded that a sentence at the bottom of the Guidelines range (70
months) was appropriate. Because that decision was well supported by the record, we
hold that the District Court did not abuse its discretion. See, e.g., Rita v. United States,
551 U.S. 338, 359–60 (2007); Tomko, 562 F.3d at 567–568.
III
For the foregoing reasons, we will affirm the District Court’s judgment of
conviction and sentence.
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